JR137's Application for Judicial Review and in the matter of a decision of the Upper Tribunal (Immigration and Asylum Chamber)
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2021] NIQB 13 |
| Date | 08 February 2021 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2021] NIQB 13
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11414
ICOS No: 21/001877/1
Delivered: 08/02/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
___________
IN THE MATTER OF APPLICATION BY JR137
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
___________
Erik Peters BL (instructed by Wilson Nesbitt, Solicitors) for the Applicant
Joseph Kennedy BL (instructed by the Crown Solicitor’s Office) for the Interested Party
___________
SCOFFIELD J
Introduction
[1] This is an application for leave to apply for judicial review of a decision of the
Upper Tribunal (Immigration and Asylum Chamber) to refuse permission to appeal
to itself.
[2] The applicant is a national of Nepal. She resides in Northern Ireland with her
UK-born child, as well as with her husband, who is dependent on the applicant’s
claim. On 1 July 2017 the applicant claimed asylum in the United Kingdom. On
15 May 2018 the Secretary of State for the Home Department (SSHD) refused the
applicant’s asylum claim. The applicant appealed that decision but, as appears
below, by the time her appeal came to be considered by the First-tier Tribunal (FtT),
she had abandoned her own claim for asylum and instead relied on her child’s
residence and circumstances within the United Kingdom (UK). The applicant’s
appeal to the FtT was dismissed; and the FtT then further refused her permission to
appeal to the Upper Tribunal (UT). The UT in turn refused permission to appeal to
itself and it is that decision which is under challenge. As the FtT did, I have granted
anonymity in this case, on application by the applicant, by reason of the involvement
of the applicant’s child and the details which the judgment and proceedings will
contain concerning her.
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[3] This application therefore engages the heightened threshold for the grant of
leave which authority establishes should apply when a challenge is brought to a
refusal of the Upper Tribunal to grant permission to appeal to itself. The error of
law relied upon by the applicant in an attempt to surmount the formidable threshold
for the grant of leave is, in essence, the failure of the UT to identify and act upon the
failure of the SSHD to comply with her obligation under section 55(3) of the Borders,
Citizenship and Immigration Act 2009 (‘the 2009 Act’). The SSHD’s alleged failure,
in turn, resolves to a failure to adequately engage with the applicant’s child in order
to ascertain her wishes and feelings in the context of the applicant’s claim.
[4] The applicant was represented by Mr Peters BL. The proposed respondent,
the Upper Tribunal, as is its practice, declined to participate in the proceedings,
allowing its decision simply to speak for itself and the SSHD to seek to defend it,
should she choose to. The SSHD will be a notice party in the event that leave to
apply for judicial review is granted and appeared at the leave hearing as an
interested party, represented by Mr Kennedy BL. I am grateful to both counsel for
their helpful written and oral submissions.
Summary of the facts
[5] For present purposes it is unnecessary to rehearse an extremely detailed
synopsis of the factual background of this application. The basic facts, however, are
as follows.
[6] The applicant is a citizen of Nepal. She arrived in the UK on 11 September
2009 on a valid visa, which expired on 9 September 2011. On 20 July 2011 the
applicant gave birth to her daughter, when the family were living in London. The
applicant made further applications to extend her visa in 2011 and 2012; but those
applications were refused. The applicant nevertheless did not leave the UK.
[7] On 1 July 2017 the applicant claimed asylum in the UK. This application was
refused by the SSHD on 15 May 2018. The applicant appealed against this decision
and the appeal was listed to be heard in the FtT on 3 March 2020. However, on
15 January 2020, seven weeks before the hearing of the appeal, the applicant’s
solicitors wrote to the SSHD inviting her to reconsider the matter in light of
Appendix FM, Section EX of the Immigration Rules as the child had now been living
continuously for a period of over seven years in the United Kingdom.
Supplementary materials evidencing the child’s integration into, and private life in,
the United Kingdom were provided.
[8] On 31 January 2020 the SSHD responded suggesting that, at the time of the
applicant’s application for asylum, the child had not been in the UK for seven years
and, accordingly, that the decision to refuse the applicant leave to remain had been
and was correct.
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3 cases
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Upper Tribunal (Immigration and asylum chamber), 2021-09-08, [2021] UKUT 237 (IAC) (Arturas (child’s best interests: NI appeals))
...to appeal against a decision of the First-tier Tribunal: In the matter of application by JR137 for leave to apply for judicial review [2021] NIQB 13. The applicant was a national of Nepal, residing in Northern Ireland with her United Kingdom-born child and her husband. Abandoning her claim ......
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Arturas (Child's Best Interests: Ni Appeals)
...55 duty) Nigeria [2014] UKUT 517 (IAC); [2015] INLR 481 JR137 for leave to apply for Judicial Review, In the matter of application by [2021] NIQB 13 MK (section 55 — tribunal options) Sierra Leone [2015] UKUT 223 (IAC); [2015] JNLR 563 MPB Structures Ltd v Munro 2003 SC 485; 2003 SLT 551; 2......
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Upper Tribunal (Immigration and asylum chamber), 2022-03-25, PA/04203/2019
...court, along with a covering letter explaining what happened and a copy of the leave judgment of Scoffield J in application by JR137 [2021] NIQB 13, decision of this court, dated 8 February 2021 and the decision of the Scottish Inner House Court of Session in ZG v SSHD dated 2 March 2021.” ......